Twenty-five years ago the Supreme Court held that public schools could not post the Ten Commandments in classrooms for the asserted purpose of demonstrating the origins of American law. The Court said:
"The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness. . . . Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day" (Stone v. Graham, 1980).
Justice Rehnquist, as he then was, dissented: "The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin. This Court has recognized that 'religion has been closely identified with our history and government,' . . . and that '[t]he history of man is inseparable from the history of religion'" (ibid., citations omitted).
Anyone (including this writer) who predicted that this rather commonsensical ruling would be conclusive was a false prophet. Ten Commandments litigation has become a growth industry for lawyers specializing in the First Amendment. Dozens of lawsuits have been filed over the past five years challenging Ten Commandments displays by government or by private parties given special access to government land. Purely private displays are, of course, not affected by this litigation. Two of these cases-Van Orden v. Perry (Texas) and McCreary County v. ACLU (Kentucky)-have come before the United States Supreme Court. Decisions will come by June 2005.
Although the burst of litigation is relatively new, the displays may not be. Many of the Ten Commandments displays are almost 50 years old, but are now challenged for the first time. There is also a spurt of new Ten Commandments displays, including one involving an Alabama judge who has embroidered them on his judicial robes. The most notorious new display case involved a deliberately provocative 5,000-pound granite monument placed in the Alabama Supreme Court building by former Alabama Supreme Court chief justice Roy Moore. A federal court ordered it moved. The chief justice refused. It was removed anyway. The display and its removal may be serving as a springboard for Moore's political ambitions.
It would be hard to say that these challenges are a result of a sudden upsurge in violations of the Ten Commandments themselves, and that the displays are being challenged as unwelcome reminders that people are sinners. The murder rate keeps dropping. It is doubtful that adultery is more common now than it was 20 or 40 years ago. With the exception of small groups of Jewish and Christian believers, the Sabbath is no more scrupulously observed today than at any time during the past 50 years.
Texas and the Commandments-Van Orden v. Perry
Just before the 1956 release of his remake of The Ten Commandments, fabled movie producer Cecil B. DeMille learned that a Minnesota juvenile judge and the Fraternal Order of Eagles had joined to erect Ten Commandments monuments in public places. The judge believed that the teenagers he saw in his courtroom lacked any idea of right and wrong. Exposure to the commandments, he believed, would set such teens straight.
The Eagles joined with the judge only after persuading themselves that despite having picked the Lutheran version of the commandments-which differs both in numbering and interpretation from the version of the commandments adopted by the Jewish, Catholic, and other Christian traditions-the display would be nonsectarian. (Jews, for example, count "I am the Lord" as the first commandment; the monument treats that verse as a prologue and omits the phrase "which have brought thee out of the land of Egypt.") DeMille saw an opportunity to help promote his movie. Over the next few years he helped pay for literally thousands of these displays.
One of these Ten Commandments monuments was erected on the grounds of the Texas' Capitol in 1961. When Texas redesigned its Capitol grounds in 1993, sharply reducing the number of monuments displayed, the commandments monument remained.
The monument's presence at the Capitol went unchallenged until a nonpracticing lawyer, Thomas Van Orden, alleged that by displaying the commandments in this fashion the state was improperly "promoting the Commandments as a personal code of conduct." He argued that the reasonable observer would see the display as favoring the Jewish and Christian faiths over others and over atheism.
Texas denied that the monument's purpose or effect was religious. It asserted that the monument celebrated only "the large [secular] role of the Decalogue in the development of Texas law."
The United States District Court for the Western District of Texas and the United States Court of Appeals for the Fifth Circuit agreed with Texas. The appellate court accepted Texas' claim that the monument celebrated the commandments' influence on American law, but that "to say this is not to diminish the reality that it is a sacred text to many, for it is also a powerful teacher of ethics, of wise counsel urging a regiment of just governance among free people. The power of that counsel is evidenced by its expression in the civil and criminal laws of the free world. No judicial decree can erase that history and its continuing influence on our laws-there is no escape from its secular and religious character. There is no constitutional right to be free of government endorsement of its own laws."
The appellate court did not explain how, for example, the commandment against idolatry influences secular law.
The Kentucky Case- McCreary County v. ACLU
The Kentucky Ten Commandments monument is more recent, and its history more complex, than its Texas counterpart. The case before the Supreme Court was one of three consolidated in the lower courts, each challenging a display of the commandments in a different Kentucky county. The one the Court is reviewing is one of two involving courthouse displays. The third case involved a school display. (Although the school board sought Supreme Court review of a part of the decision adverse to its display, the Court has so far pointedly refused to act on that request.)
The display in McCreary County began only with a framed copy of the Ten Commandments. (The Court does not explain which version was used.) When the ACLU filed suit challenging the display, the county quickly posted a potpourri of equally sized documents around it, which, like reindeer and Santa Claus around a municipal crèche, supposedly reinforced the secular character of the display.
When these odd documents (including, for example, Lincoln's 1863 call for a national day of prayer, and the national motto "In God We Trust") predictably failed to impress the court-because if anything, they reinforced, not minimized, the religious character of the display-the county erected instead a display that included equally sized framed copies of the Ten Commandments, the entire "Star-Spangled Banner" (the never-sung and almost wholly unknown fourth stanza includes the phrase "And this be our motto: 'In God is our trust'"), the Magna Carta, the Declaration of Independence, the Mayflower Compact, the Bill of Rights, the preamble to the Kentucky constitution ("We the people of the Commonwealth of Kentucky, grateful to Almighty God for [our]… liberties and invoking the continuance of these blessings. … ") and Lady Liberty.
The display also bore an explanatory note declaring that the Ten Commandments "have profoundly influenced the formation of Western legal thought and the formation of our country." It did not explain how the documents-other than the Declaration of Independence's reference to the "Creator" and "Nature's God" (almost certainly not the God responsible for the commandments) were relevant to the commandments. This ragtag collection also did not impress the district court and the court of appeals, which found that these additional documents did not relate to the Ten Commandments in any significant way. It therefore ordered the commandments removed.
A dissenting judge argued that the purpose of the display was to illustrate the role that religion played in the foundation of American government, and that the court was not entitled to question Kentucky's claim that this was in fact its purpose.
In the Supreme Court
The decision of the Court to take two cases-one upholding a display, one prohibiting it-has called out a large number of friend-of-the-court briefs. Urging that the Court find the commandments displays constitutional are, among others, the American Center for Law and Justice, the Becket Fund for Religious Liberty, Thomas More Center, the American Legion, and several others; and in the case of Kentucky only, the Bush administration. (It apparently believes that there is a difference between a freestanding display and one surrounded by even unrelated historical documents.) On the other side are, among others, American Atheists, Baptist Joint Committee, Americans United for Separation of Church and State, and (in a brief I authored) the American Jewish Congress.
The legal issues before the Court are many.
(1) Should the Court repudiate its earlier decision in Stone v. Graham, as Chief Justice Rehnquist and Justices Scalia and Thomas have suggested?
(2) Should courts presume that official sponsors of displays of key religious documents are religious, leaving it to officials to demonstrate clearly that a particular display (as in a museum or a school textbook) is secular in purpose and effect; or, to the contrary, should they take at face value official claims of secular purpose-protestations that are often hard to take seriously, as they are offered with a wink solely to defend the display?
(3) How should the Court deal with the fact that there is no single official version of the Ten Commandments? There are many versions with significant theological differences between them. (Is there a commandment requiring belief in God? Is there a ban on worshipping other gods or a ban on any physical depiction of God? Is there a ban on false swearing or using God's name in vain? A ban on murder or killings?) And what weight should be assigned to the growing strength of Islam, Hinduism, and Buddhism with regard to displays rooted in the Judeo-Christian tradition? The Bush administration notes the question, but takes no position on it.
(4) Is it historically accurate that the commandments play a unique role in shaping American law? The claim is often made, and there is no doubt about their role in American culture, but there is substantial doubt about their role in shaping American law.
All these questions simply mask the larger question-the one that in fact fuels the surge of litigation: Should generic Judeo-Christianity (often more the latter than the former) have a preferred place in American government such that its noncoercive endorsement by government is constitutionally acceptable? The answer to the question ought to be no, and it is a position worth defending, no matter how the High Court decides the current cases.
________________________
Marc D. Stern is assistant executive director of the American Jewish Congress (AJ Congress) and co-director of its Commission on Law and Social Action. He is one of the most respected lawyers in the United States on church-state and religious liberty issues. Mr. Stern has taken the lead role in coalitions that produced guidelines utilized by the Clinton administration to clarify contentious church-state issues in American society. These guidelines include Religion in the Public Schools, Religion in the Federal Workplace, and Public Schools and Religious Communities: A First Amendment Guide. He writes from New York City, New York.
________________________
|
TOP LEVEL
Past Issues
Printer-friendly page
Send this page to a friend